DEPARTMENT OF NATURAL RESOURCES AND MINES

(1)

D EPARTMENT OF N ATURAL R ESOURCES AND M INES

AGREEMENT FOR WORK TO BE CARRIED OUT

UNDER THE GREAT ARTESIAN BASIN SUSTAINABILITY INTIATIVE

CLIENT DOES - BORE REHABILITATION WORK ONLY

“Property Name”

Bore Name RN 1234

Natural Resources and Mines PO BOX 318,

Toowoomba, QLD 4350 Australia

(2)

C

This Agreement is made between

The State of Queensland acting through the Department of Natural Resources and Mines ABN: 59 020 847 551

(DNRM) AND

[Include Landholder’s details and ABN]

(Landholder) Background

As part of the Great Artesian Basin Sustainability Initiative (GABSI) financial assistance (Subsidy) is A available for landholders who undertake bore rehabilitation work, and which results in a saving of flow

from the Great Artesian Basin.

B The Landholder has applied for financial assistance to do the works.

DNRM has approved the Landholder’s submission and has agreed to provide financial assistance to the Landholder to carry out the Bore Rehabilitation Work, subject to the terms and conditions of this Agreement.

D The Parties wish to record the terms and conditions of their agreement, which consists of:

(a) Terms and Conditions;

(b) Schedule 1 – Party Details;

(c) Schedule 2 – Subsidy and Disbursement;

(d) Annexure 1 – Landholder’s submission; and (e) Annexure 2 - Form GABSI-004.

It is agreed:

1. Definitions and Interpretation 1.1 Definitions:

Actual Bore Rehabilitation Subsidy Paid or Actual Subsidy means the subsidy paid to the Landholder by DNRM upon successful completion of the bore rehabilitation and is calculated in Item 2 of Schedule 2. The Actual Subsidy paid is the lesser of the actual cost and the proposed cost.

Agreement means the clauses contained in this document and the attached Schedules and Annexures.

Background IP means IP Rights which are made available by a party for the purpose of carrying out this Agreement and that are:

(a) in existence at the Commencement Date; or

(b) brought into existence after the Commencement Date other than as a result of the performance of the Works.

Bore means the bore identified at Item 1 of Schedule 1.

Bore Rehabilitation Work means the activities to be undertaken to bring the Bore into a controlled state whereby the flow from the aquifer can be regulated and shutdown with a valve, without leakage at the surface, resulting in a flow saving from the Great Artesian Basin. The Bore Rehabilitation Work is specified in the Landholder’s Submission located in Annexure 1.

Business Day means a day that is not a Saturday, Sunday or a public holiday in Brisbane.

Class 3 Driller means a person who is accredited through the Australian Drilling Industry Association and carries a current Queensland water bore driller’s licence. The details of the Class 3 Driller are shown in Item 6 of Schedule 1.

Commencement Date means the date this Agreement is executed by the last Party to sign.

Completion Date means the date by which the Bore Rehabilitation Work is to be completed as specified in Item 4 of Schedule 1.

Disbursement means payment of an Actual Subsidy by DNRM.

Client Does - Works Agreement for Bore Rehabilitation work under GABSI Page 2 of 15

(3)

DNRM means the State of Queensland as represented by the Department of Natural Resources and Mines.

Expiry Date means the date by which:

(a) the Bore Rehabilitation Work is completed; and

(b) Form GABSI-004 has been provided to the Department.

Form GABSI-004 means the form shown in Annexure 2 titled ‘Completion of Works – Compliance Certificate

& Disbursement of Subsidy’ and includes:

(a) Bore cementing report;

(b) Bore completion report;

(c) Materials invoices;

(d) Drilling contractor invoices;

(e) Geophysical logging invoice;

(f) Pre-works bore flow testing invoice; and (g) Photographs of the old and new bores.

GABSI means the Great Artesian Basin Sustainability Initiative, as a joint initiative between DNRM and the Commonwealth of Australia.

GST means any tax imposed under GST Law and includes GST within the meaning of the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.

GST Law means the GST Law as defined in the GST Act and includes any act of Parliament of Australia that imposes or deals with GST.

Landholder means the legal owner of the Property, or where there is a lease, the holder of the registered lease as described in Item 5 of Schedule 1.

Landholder’s Submission means the DNRM approved submission, located in Annexure 1.

Ineligible Items means those items which the Landholder cannot claim as part of the Disbursement:

(a) Costs associated with drilling, including materials, beyond the Total Depth of the Bore.

(b) Costs associated with stand-down of the driller.

(c) Costs associated with the transport, unloading, movement and storage of materials on the property.

(d) Costs associated with the housing and feeding of drilling contractors;

(e) Costs associated with the clearing of tracks and pads for drilling works; and (f) Costs associated with procurement and fitment of water meters.

Material means any material including Intellectual Property Rights, created, written or otherwise brought into existence by or on behalf of the Landholder in the course of carrying out the Bore Rehabilitation Works, excluding reports.

Parties means DNRM and the Landholder and “Party” means either of them, as the context requires.

Property means the property identified at Item 2 of Schedule 1.

Proposed Bore Rehabilitation Subsidy means the subsidy payable to the Landholder by DNRM as shown in Item 1.2 of Schedule 2. The proposed subsidy was calculated in the Landholder’s submission.

Representative means an employee, agent, officer, director, contractor, subcontractor or other authorised representative of a Party.

Special Conditions means any terms and conditions that are agreed to by the Parties and specified in Item 7 of Schedule 1.

Standards mean the “Minimum standards for the construction and reconditioning of water bores that intersect the sediments of artesian basins in Queensland” which are available at www.dnrm.qld.gov.au and as amended from time to time.

State means the State of Queensland.

Total Depth of the Bore means the depth of the Bore as described on DNRM’s bore card for the Bore. This depth is specified in Item 3 of Schedule 1.

1.2 Interpretation:

(a) In this Agreement unless a contrary intention appears, words importing a gender include any other gender and words in the singular include the plural and vice versa.

(b) In this Agreement, unless a contrary intention appears, a reference to:

(i) “dollars” or “$” is a reference to the currency of Australia;

(ii) any legislation shall include any Act of Parliament and any subordinate legislation, rule, regulation, order or instrument made under it and shall include any statutory modification, substitution or re-enactment of such legislation;

(4)

(iii) if under this Agreement, the day on which or by which any act is to be done is a Saturday, Sunday or public holiday in Queensland, the act may be done on the next business day in Queensland;

(iv) an individual or person includes a corporation, partnership, joint venture, trust, association, governments, local government authorities and agencies;

(v) a clause or schedule is a reference to a clause or schedule to this Agreement; and

(vi) a party to this Agreement includes the executors, administrators, successors and permitted assigns of that party.

(c) Clause headings in this Agreement are for convenience of reference only and have no effect in limiting or extending the language of the provisions to which they refer.

(d) In this Agreement if a word is defined, cognate words and phrases have corresponding definitions.

(e) If a Party to this Agreement consists of more than one person, those persons shall be jointly and severally bound under this Agreement.

2 Term

This Agreement will start on the Commencement Date and finish on the Expiry Date, unless earlier terminated in accordance with its terms.

3. Precedence

Where any inconsistency exists between:

(a) the Special Conditions;

(b) the terms and conditions;

(c) Schedule 1 (except the Special Conditions);

(d) Annexure 1; and (e) Annexure 2,

the provisions will take precedence in that order to the extent necessary to resolve the inconsistency.

4. Bore Rehabilitation Work The Landholder warrants that:

(a) The Bore Rehabilitation Work must be performed in accordance with this Agreement.

(b) The Bore Rehabilitation Work must be carried out by a Class 3 Driller.

(c) The Bore Rehabilitation Work will be as per the Landholder’s Submission.

(d) DNRM does not estimate or guarantee the flow and pressure to be expected from the rehabilitated bore and as such there is an element of financial risk associated with the Bore Rehabilitation Works.

(d) The Landholder is liable for the full cost of the Bore Rehabilitation Work.

(e) If the Landholder fails to complete the Bore Rehabilitation Work in accordance with the Landholder’s Submission, the Landholder will not receive an Actual Subsidy.

(f) The Bore Rehabilitation Work will meet the Standards.

(g) The Landholder is responsible for all costs incurred where the bore depth is increased beyond the Total Depth of the Bore. These costs do not form part of the Disbursement.

5. Responsibilities of DNRM DNRM will:

(a) administer the Subsidy for the Bore Rehabilitation Work; and

(b) be responsible only for its own activities and that of its Representatives in accordance with clauses 5(a) and 8.

6. Responsibilities of the Landholder

(a) The Landholder has obtained the approval of all neighbouring landholders who access a water supply from the bore of the intention to rehabilitate the bore. The approvals are shown in the Landholder’s Submission.

(b) The Landholder must complete the Bore Rehabilitation Work by or before the Completion Date.

Failure to comply may result in forfeiture of an Actual Subsidy.

(c) Unless otherwise provided for, the Landholder will be responsible for all additional costs not expressly mentioned in the Landholder’s Submission, where such costs are necessary for the satisfactory completion of the work by or before the Completion Date.

(5)

(d) No part of a Disbursement will be paid for Ineligible Items.

(e) The Landholder agrees to accept appointment as principal contractor for a construction workplace pursuant to the Work Health and Safety Act 2011 (the Act) and as such comply with the obligations of the principal contractor as specified in the Act.

(f) It is the Landholder’s responsibility to ensure that the Bore Rehabilitation Work meets the Standards.

Failure to comply with the Standards may result in forfeiture of a Subsidy.

(g) It is the Landholder’s responsibility to ensure that the Bore Rehabilitation Work meets the requirements of the Landholder Submission shown in Annexure 1. Failure to comply with these requirements may result in forfeiture of a Subsidy.

(h) The Landholder shall comply with the requirements of all relevant legislation and the lawful requirements of public or other authorities affecting the Works and shall unless otherwise specified pay all fees in connection therewith; and shall give all notices and obtain all necessary consents. For example but not limited to; crossing public roads, vegetation management, cultural heritage.

(i) The Landholder must inform DNRM in writing of sale contracts of the Property on which the Bore Rehabilitation Work is being undertaken. Where the Property is sold, the Landholder will not be entitled to receive a partial Actual Subsidy.

7. Actual Subsidy Disbursement

(a) The DNRM agrees to pay the Landholder the Disbursement value as calculated in Item 2 of Schedule 2, on receipt of:

(i) a correctly certified and lodged Form GABSI-004, including all reports; and (ii) a correctly rendered tax invoice.

(b) Upon receipt of the Form GABSI-004 and confirmation of satisfactory completion, the Department will request a correctly rendered tax invoice.

(c) The DNRM may at its absolute discretion request further evidence, or undertake an inspection of the property in accordance with clause 8, before a Disbursement is made under sub-clause (a) of this clause 7.

(e) All payments made by DNRM will be inclusive of GST.

(f) The Department is released from obligation to pay any part of the Disbursement where the Bore Rehabilitation Works are not completed in accordance with the Landholder’s Submission.

8. Security and access

(a) The Landholder agrees to provide to DNRM and its Representatives access to the Property for the following periods:

(i) during the Term of this Agreement; and

(ii) for a period of five years after completion of the Bore Rehabilitation Works.

(b) The Department will access the Property for the purposes of assessing the impact of the GABSI project and to assess the Bore Rehabilitation Work.

(c) The DNRM will, when accessing the Property with respect to the Bore Rehabilitation Work, comply with all rules, directions and procedures including those relating to security and to workplace health and safety in effect at the Property.

(d) The Department will provide 72 hours’ notice where it intends to access the Property.

9. Termination

9.1 Termination for convenience

(a) DNRM may in its absolute discretion, at any time, by written notice, terminate this Agreement in whole or in part without prejudice to any other rights, including for:

(i) a machinery of government change which results in monies no longer being made available for GABSI; or

(ii) if no funding is provided by the Australian Government for the GABSI program.

(b) The Landholder acknowledges that the Department relies upon an appropriation of funding from the Australian Government in order to pay the subsidy. The Department will use reasonable endeavours to ensure that Actual Subsidies are available, but the Department will not be in default or liable for any losses if it does not make a payment due to an absence or delay of funding. If the Department does not make a payment for this reason, the Department must notify the Landholder.

(6)

(c) On receipt of a notice of termination the Landholder must take all available steps to minimise loss resulting from that termination.

9.2 Termination for breach

(a) Either Party may terminate this Agreement if the other Party:

(i) breaches a material term of this Agreement which is not capable of being remedied; or

(ii) breaches a material term of this Agreement which is capable of being remedied and fails to remedy that breach within thirty (30) days after receiving notice requiring it to do so.

(b) On receipt of a notice of termination the Landholder must take all available steps to minimise loss resulting from that termination.

10. GST

(a) Words defined in the GST Law have the same meaning in this clause.

(b) If a Party is required under this Agreement to reimburse or pay to another Party an amount calculated by reference to a cost, expense, or an amount paid or incurred by that Party, the amount of the reimbursement or payment will be reduced by the amount of any input tax credits to which that Party (or an entity on whose behalf the Party is acting) is entitled in respect of any acquisition relating to that cost, expense or other amount.

(c) If GST is payable by an entity ("Supplier") in relation to any supply that it makes under or in connection with this Agreement, the Parties agree that:

(i) any consideration (including the value of any non-monetary consideration) provided for that supply under or in connection with this Agreement other than under this sub-clause (c) ("Agreed Amount") is exclusive of GST;

(ii) an additional amount will be payable by the Party providing consideration for that supply ("Recipient") equal to the amount of GST payable by the Supplier on that supply;

(iii) the additional amount is payable at the same time as any part of the Agreed Amount is to be first provided for that supply and the Supplier will provide a tax invoice to the Recipient in respect of that supply, no later than that time; and

(iv)to the extent, if any, that any consideration (or part thereof) is specified in this Agreement to be inclusive of GST, that consideration (or the relevant part) shall be excluded from the Agreed Amount for the purposes of calculating the additional amount under subclause (c) (ii).

11. Good Faith and Dispute Resolution

(a) The Parties agree to cooperate with each other in the performance of this Agreement and in the event of a dispute arising, to negotiate in good faith a resolution of the dispute.

(b) A dispute about this Agreement arises when a Party gives written notice of the dispute to the other Party containing adequate details of the dispute.

(c) The Parties agree that any dispute arising must be dealt with by a process of escalation through each Parties’ respective management hierarchy within 14 days of the notice of dispute.

(d) The Landholder must continue to perform its obligations under this Agreement despite the existence of a dispute unless it obtains the State’s prior written consent.

(e) The Parties must comply with this clause 11 before seeking any relief in any court tribunal, except for urgent relief in the form of judgment from a court.

12. Liability and Indemnity 12.1 Release

(a) The Landholder releases to the full extent permitted by law, the Department and its Representatives from all actions, claims, proceedings or demands and in respect of any loss, death, injury, illness or damage (whether personal or property, and whether special, direct, indirect or consequential, including consequential financial loss) arising from or in connection with the Services, the Project or this

Agreement.

12.2 No liability for consequential or indirect loss

(a) The Department and its Representatives will not in any circumstances (including for negligence) be liable for any loss of revenue, loss of profit, loss of anticipated savings or business, loss of opportunity (including opportunity to enter into or complete arrangements with third parties), loss of data or goodwill, loss of reputation, or any indirect or consequential loss, whether arising in contract, tort (including negligence) or otherwise, in connection with this Agreement.

(7)

12.3 Indemnity

(a) The Landholder indemnifies the Department and its Representatives against all liability, loss, costs and expenses (including legal fees, costs and disbursements on a solicitor and own client basis) arising from or incurred in connection with:

(i) any default by the Landholder or its Representatives under this Agreement;

(ii) any unlawful, wilful or negligent act or omission of the Landholder, the Landholder’s Representatives or any person for whose conduct the Landholder is liable;

(iii) personal injury (including sickness and death) or property damage or loss in connection with the performance (or attempted or purported performance or non-performance) of this agreement or a breach of this agreement by the Landholder; or

(iv) any infringement or alleged infringement of any IP Rights or Moral Rights.

(b) The Landholder’s liability to indemnify the Department and its Representatives under clause 12.3 will be reduced proportionally to the extent that any negligent act or omission or breach of this agreement by the Department caused the loss or liability.

(c) The Department’s liability will be limited to the amount of the Proposed Bore Rehabilitation Works Subsidy as set out in Schedule 2.

(d) The indemnity granted in clause 12.3(a) is in addition to and not exclusive of any other remedies the Department may have against the Landholder at law.

12.4 No expense required

(a) It is not necessary for the Department to incur expense or to make a payment before enforcing a right of indemnity conferred by this Agreement.

13. General matters

(a) Variation - This Agreement may only be varied upon written agreement that is signed by both Parties provided that any variation does not exceed the original scope of the Agreement.

(b) Governing Law - This Agreement is governed by and construed in accordance with the law of Queensland and the Parties hereby submit to the non-exclusive jurisdiction of the courts in Queensland.

(c) Entire Agreement - This Agreement constitutes the entire Agreement of the Parties and supersedes all previous communications, negotiations, arrangements and agreements between the Parties.

(d) Compliance with Laws - The Landholder must comply with all relevant laws in performing the Work including the Work Health and Safety Act 2011.

(e) Severability - Any provision in this Agreement which is invalid or unenforceable is to be read down if possible, so as to be valid and enforceable. If that is not possible, the provision must, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability without affecting the remaining provisions.

(f) The Landholder will not assign, novate or subcontract the whole or any part of this Agreement without the prior written consent of DNRM.

14. Notices

(a) Notices under this Agreement must be in writing and may be delivered by prepaid postage or certified mail, by hand, or by facsimile transmission to the Parties at the addresses specified in Item 5 of Schedule 1 or other address subsequently notified by one Party to the other.

(b) Notices will be deemed to be given:

(i) on the fifth day after the date of posting after deposit in the mail with postage prepaid; or (ii) immediately on delivery by hand; or

(iii) if sent by facsimile transmission, at the time in the place to which it is sent equivalent to the time recorded on the transmitting machine from which it was sent.

(c) The Parties agree that where notice is given by facsimile transmission the original document must be sent by post.

(d) If the communication is taken to have been received on a day that is not a Business Day or later than 5.00pm on a Business Day, the communication is taken to have been received at 9.00am on the next Business Day.

(8)

15. Intellectual Property

(a) Nothing in this deed affects ownership of Background IP.

(b) All rights in and title to the Material and Reports will vest, upon creation, in the Landholder.

(c) The Landholder grants to DNRM:

(i) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free licence (including a right to sub- license) to use, communicate, reproduce, publish, adapt and modify:

(A) the Activity Material;

(B) the Landholder’s Background IP; and

(C) the Reports for Department non-commercial purposes.

(d) The Department grants to the Landholder a non-exclusive, non-transferable, royalty-free licence to use the Department’s Background IP solely for the purposes of carrying out the Activity and exercising its rights in the Material (insofar as the Department’s Background IP forms part of the Material).

(e) The Landholder will do all things necessary (including obtaining consents) to ensure:

(i) the vesting of the Material and Reports in accordance with clause 15(c); and (ii) the licensing of the Material and Reports in accordance with clause 15(d).

16. Survival

(a) The following clauses survive termination of this Agreement:

(i) Dispute resolution (clause 11);

(ii) Liability and Indemnity (clause 12);

(iii) General matters (clause 13);

(iv) Intellectual property (clause 15); and (v) Survival (clause 16).

(9)

_ _ _______________________________

_______________________________

_________________________________

__________________________________

_______________________________

_________________________________

__________________________________

_______________________________

______________________________

_________________________________

__________________________________

Signed as an Agreement

Signed for and on behalf of the State of Queensland acting through the Department of Natural Resources and Mines ABN 59 020 847 551 by

_____________________________________, a person duly authorised to act in that behalf in the presence of:

Signature of Witness Name of Witness in full

Signature Position

Date: __________________________

Option 1: if the Recipient is an individual **Delete if inapplicable** OR Signed, sealed and delivered by the Recipient

Signature of Witness Name of Witness in full

Signature

Date: __________________________

Option 2: if the Recipient is a company **Delete if inapplicable** include ABN OR Executed by the Recipient in accordance with

section 127 of the Corporations Act 2001 (Cth): Signature of Director/sole Director Name of Director/sole Director in full Date: __________________________

Signature of Director/Secretary Name of Director/Secretary in full Date: __________________________

Option 3: if the Recipient is another entity **Delete if inapplicable** include ABN Signed, sealed and delivered for and on behalf of the

Recipient by

____________________________________ a person duly authorised to act in that behalf in the presence of:

Signature of Witness Name of Witness in full

Signature

Date: _________________________

(10)

Schedule 1 Party Details

1. The Registered Number of the Bore on which the Bore Rehabilitation Work is to be completed (taken from Section 1 of the approved Landholder Submission located in Annexure 1) [xx]

2. The Property/s on which the bore rehabilitation work is located (taken from Section 7.1 of the

approved Landholder Submission located in Annexure 1) [xx]

3. The Total Depth of the Bore. Works beyond this depth are at the Landholders full expense.

[xx]

4. Completion Date: 31 March 2016, for works to be completed in the 2015/2016 financial year 31 March 2017, for works to be completed in the 2016/2017 financial year

5. Contact Details

DNRM: Department of Natural Resources and Mines Great Artesian Basin Sustainability Initiative PO Box 318, Toowoomba QLD 4350 Phone: (07) 4529 1355

Fax: (07) 4529 1556

Email: gabsiadmin@dnrm.qld.gov.au

Landholder: (taken from Section 7.0 of the approved Landholder Submission located in Annexure 1) [Name]

[Position]

[Address]

Phone: [Phone]

Fax: [Fax]

Email: [Email]

6. Class 3 Driller Details:

[Name]

Licence No.: [Licence No.]

[Position]

[Address]

Phone: [Phone]

Email: [Email]

7. Special Conditions

Should the Landholder nominate to undertake metering this is where this condition would be recorded - most other times “Nil” will be typed

(11)

1

2

Schedule 2 Subsidy and Disbursement

All amounts in this schedule are inclusive of GST

Bore Rehabilitation Work (To the Total Depth of the Bore, Item 3 of Schedule 1) 1.1 ESTIMATED COST OF THE BORE REHABILITATION WORK (Incl GST)

(from the DNRM approved Landholder Submission in Annexure 1)

$ ####

1.2 PROPOSED BORE REHABILITATION SUBSIDY (Incl GST)

(from the DNRM approved Landholder Submission in Annexure 1)

$ ####

Disbursement

Actual Bore Rehabilitation Subsidy Paid (to Total Depth only) – the lesser of:

(i) the value shown in item 1.2 above; and,

(ii) {the sum of all bore rehabilitation expenses * 80%}

(12)

Annexure 1 Landholder’s Submission [insert copy of submission]

(13)

Annexure 2 Form GABSI-004

(14)

(15)